NATIONAL ELECTRIC POWER AUTHORITY v. 1. ALHAJI NURUDEEN AKINOLA LAWAL 2. ELECTRICITY CORPORATION OF NIGERIA (SC. 374/1875) [1976] 10 (12 March 1976);

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  • NATIONAL ELECTRIC POWER AUTHORITY v. 1. ALHAJI NURUDEEN AKINOLA LAWAL 2. ELECTRICITY CORPORATION OF NIGERIA (SC. 374/1875) [1976] 10 (12 March 1976);

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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 12TH DAY OF MARCH 1976

SC 374/1875

BETWEEN

NATIONAL ELECTRIC POWER AUTHORITY ............................................. DEFENDANTS/APPELLANTS

AND

1. ALHAJI NURUDEEN AKINOLA LAWAL .......................................... PLAINTIFF/RESPONDENT

2. ELECTRICITY CORPORATION OF NIGERIA .................................... 2ND DEFENDANT

BEFORE: Sowemimo and Idigbe, JJ.S.C., Obaseki AG. J.S.C.

 

By virtue of the National Electric Power Authority Decree 1972, the Authority (N.E.P.A.) was established with effect from April 1, 1972; its predecessor, the Electricity Corporation of Nigeria (E.C.N.), was dissolved as from June 1, 1972, the vesting date, with its assets and liabilities becoming vested in N.E.P.A.; and by the transitional provisions of the Decree, an officer on the established staff of E.C.N. on the vesting date was to be deemed to be seconded to N.E.P.A. for such period as may be specified by the Board of N.E.P.A. by an instrument addressed to the said officer.

The plaintiff sued N.E.P.A. and E.C.N. jointly and severally for wrongful termination of his employment. On his pleadings, his case was that his employment with E.C.N. was wrongly terminated in August 1972; that is was E.C.N. (not N.E.P.A.) that terminated his appointment; and that at all material times he was on the established staff of E.C.N.

After pleadings were filed, both defendants applied for dismissal of the action as incompetent. The trial Judge refused the application but eventually entered a non-suit in the substantive action, after dismissing the case against the 2nd defendant (E.C.N.) The 1st defendant appealed against the refusal and against the order of non-suit.

 

HELD:

Even at the very early stage of the proceedings, it was clear that on the plaintiff's claim and pleadings as formulated, his right of action, if any, was against E.C.N., which at the commencement of the proceedings no longer existed; and the trial Judge erred in law in not dismissing the claim at that stage.

(2)     Since the action was for wrongful dismissal, then as of June 1, 1972-the vesting date-the plaintiff, not having been dismissed by E.C.N., had no right of action against the E.C.N. which N.E.P.A. could inherit, and the trial Judge rightly held that the claim as formulated against N.E.P.A. must fail; but

(3)     The trial Judge erred in ordering a non-suit: Under O. 45, r.1 of the High Court of Lagos State (Civil Procedure) Rules 1973, operative when the order was made, he had no power to enter a non-suit; and even if he had such a power, an order of non-suit was improper in the circumstances.

 

Appeal allowed; claim dismissed.

Chief F.R.A. Williams (with him M.N.O.A. Elias) for the appellants.

Kehinde Sofola (with him A.A. Awolesi) for the respondent.

Case referred to:

Clack v. Arthurs Engineering Ltd. [1959] 2 All E.R. 503, 510-511.

Idigbe, J.S.C. (delivering the judgment of the Court)-Although this matter has come up before us as a single appeal, there are, in fact, two separate appeals involved and, for convenience, we shall refer to them as (a) the Principal appeal and (b) the Subordinate appeal. The Subordinate appeal is from the Ruling of the learned trial Judge, dated 19th February, 1973, dismissing the appellants' interlocutory application, pursuant to the provisions of Order 28, rule 1 of the former Supreme Court (Civil Procedure Rules) (hereafter referred to as "the old S.C.R.")-contained in Vol. 10 of the 1948 edition of the Laws of Nigeria applicable, in February 1973, in the High Court of Lagos State-for dismissal of the respondent's "action on the ground that even if the allegations of the plaintiff (i.e. respondent) were admitted or established, yet the plaintiff would not be entitled to any decree against the defendants". The question raised by the Principal appeal, which is from the final decision of the learned trial Judge in the action which proceeded in spite of the interlocutory appeal from the interlocutory order (i.e. the Ruling) aforesaid, is whether the order of the court of trial by which the claim of the respondent was "non-suited" should be allowed to stand.

The facts which form the background to these "appeals" are as follows: The respondent (as plaintiff), in the High Court of Lagos State, on the 20th day of September, 1972, filed the present suit by which he claims from the appellants and 2nd defendant, jointly and severally, the sum of £86,812:0:0 (i.e. N173,624.00) as special and general damages "for wrongful termination of plaintiff's appointment as Chief Accountant". After pleadings were ordered and delivered by the respondent, the appellants and 2nd defendant brought an application by motion on notice, pursuant to the provisions of Order 28, rule 1 of the old S.C.R., for and order of the court dismissing the respondent's (i.e. plaintiff's) action "on the ground that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree" on the following grounds:-

"(1)    That the writ of summons and statement of claim fail to disclose that the defendants are liable jointly for damages claimed.

(2)     As the 2nd defendant had ceased to exist in law, no decree can be made against the said defendant.

(3)     The liability of the 2nd defendant for alleged 'wrongful termination of the plaintiff's appointment as Chief Accountant' does not vest in the first defendant and accordingly that defendant is not liable for the relief claimed on the writ of summons.

(4)     The statement of claim discloses no cause of action against the 1st defendant (sic) the relief sought in the action particularly (among other reasons) as there was no contract of service binding between the plaintiff on the one part and the 1st defendant on the other."

(Italics supplied).

The learned trial Judge dismissed the above application but later granted the defendants' application for leave to appeal against the said interlocutory order (i.e. the Ruling aforesaid). Hearing of the suit later proceeded, the appeal lodged from the said interlocutory order notwithstanding. In the penultimate section of his judgment, the learned trial Judge held that the respondent's case as formulated against the first defendant must fail and, having earlier on dismissed the respondent's action against the second defendant on the ground that it was incompetent, invited counsel for the parties to address him on the issue of a "non-suit", and finally held that in the circumstances of the case the proper order to be made was one of non-suit. The order for non-suit was accordingly made. This appeal is, therefore, by the 1st defendant (the National Electric Power Authority), the action against the 2nd defendant (Electricity Corporation of Nigeria which ceased to exist in 1972) having been dismissed as incompetent.

We pause, to set out the salient points raised in the pleadings delivered by parties. The materials paragraphs in the statement of claim are 1, 3, 4, 5, 8, 9, 10, 13, 20 and 21 and they read:-

"(1)    By an agreement between the plaintiff and the 2nd defendants, it was agreed that the 2nd defendants should employ the plaintiff as Chief Accountant in the 1st defendant's service on a salary plus allowance.

(3)     The 2nd defendants had caused the plaintiff to receive series of courses and training locally and overseas.

(4)     In consequence of the matters referred to in paragraphs 1, 2 and 3 ....... the plaintiff had settled down on the job in anticipation of a career with the 2nd defendants.

(5)     The plaintiff duly served the 2nd defendants for 25 years and 3 months and rose to the post of the Chief Accountant until when by a letter dated the 2nd day of August, 1972 his appointment was wrongly terminated with effect from 27th July, 1972, and he was immediately refused by the defendants to remain in the 2nd defendants' service.

(8)     By series of unlawful acts, the 2nd defendants eventually wrongly debarred the plaintiff from the service of the 2nd defendants by letter dated 1st June, 1972, with immediate effect without any opportunity of being heard and contrary to the rules and regulations governing the plaintiff's conditions of service and also contrary to the rules of natural justice.

(9)     The 2nd defendants wrongfully purported to offer to the plaintiff the post of the Chief Internal Auditor of the 2nd defendants contrary to circular dated 13th November, 1971, and to the prejudice of the 2nd defendants' interest.

(10) By letter dated 12th June, 1972, the 2nd defendants caused the plaintiff to be interdicted from the services of the 2nd defendants with immediate effect without the opportunity of being heard and contrary to the circular dated 9th May, 1970 and also contrary to the rules of natural justice.

"(13) The plaintiff has thereby lost the salary which he could have derived from continuing in the 2nd defendants' service, the prospects of promotions to higher grades with salary which he would have earned ...........

PARTICULARS OF SPECIAL DAMAGES

(a)

(b)

(20) The plaintiff at all material times to this action was on the established staff of the 2nd defendants and states that no instrument has up till now been addressed to him as required by law and no offer of employment has been made to him for service under the 1st defendants.

(21) The plaintiff avers that no bye-laws relating to the appointment, promotion and discipline of officers and servants of the 1st defendants including the plaintiff have at all material times to this action been made and/or published.

Whereupon the plaintiff's claim against the defendants jointly and severally is for"

(Italics supplied).

The 1st defendants by their statement of defence denied each and every allegation of fact in the statement of claim and put the respondent to the strict proof thereof save and except the specific admissions made by them and thereafter they pleaded thus:-

"(2)    The first defendant avers that as the second defendant is no longer in existence the action against it is misconceived and incompetent.

(3)     The 1st defendant avers that any liability of the 2nd defendant to the plaintiff in respect of the plaintiff's alleged claim was not taken over or vested in the 1st defendants by law. Accordingly, the action against the 1st defendant is misconceived and incompetent.

"(4)    The 1st defendant will contend at the trial of this action that the plaintiff is not entitled to the relief sought and that his action is wholly misconceived.

Whereupon the 1st defendant states that the plaintiff's claim be dismissed with costs".

At the hearing in the court below, the respondent testifying stated that he became an employee of Electricity Corporation of Nigeria (i.e. E.C.N.) in 1947 and rose to the position of Chief Accountant of that Corporation on the 5th October, 1968. On the 5th of May, 1972, he received a letter exhibit B posting him to the Internal Audit Department of the Corporation where he was required to assume duties of Chief Internal Auditor; the post was of equal rank and pay as "that of Chief Accountant". He petitioned against the posting and eventually refused to transfer to the new post. He was on 12th June, 1972, therefore, served with a notice of interdiction from service (exhibit D refers). On 21st June, 1972, he was given a query, exhibit G, for his failure to comply with the order contained in exhibit B. His reply to the query (exhibit G1) was considered unsatisfactory and so on 2nd August, 1972, he was served with exhibit H a letter of termination of appointment. Exhibits B, D and G are each written on the note-paper of Electricity Corporation of Nigeria (the 2nd defendants) and in each case signed by a "Mr E.H. Yongren, as the Ag. Chief Executive Officer and General Manager" of the Corporation. Exhibit H is written on a "note-paper" which carries the names of the two Corporations (National Electric Power Authority-hereinafter referred to as "NEPA"-and Electricity Corporation of Nigeria-hereinafter referred to as "ECN") and is, again, signed by "E.H. Yonren as Ag. General Manager". It is, however, noteworthy that exhibit H terminates respondent's "appointment with the Corporation" with effect from 27th July, 1972, after stating that respondent's reply (exhibit G1) to Mr Yonren's query of 21st June, 1972, (exhibit G) had been considered. Exhibit G1, the reply to the query exhibit G written by the respondent, was addressed to "Ag. Chief Executive Officer and General Manager, E.C.N. Headquarters, Marina, Lagos" and dated 26th June, 1972.

We think it is necessary, at this stage, to refer to some of the provisions of the law under which the appellants and 2nd defendant Corporation were established and which are relevant to the issues for consideration in the case in hand. These are the Electricity Corporation of Nigeria Act, and sections 1, 2, 4, 5, 44, 45 of the National Electric Power Authority Decree.

E.C.N. came into existence as a Corporation, by virtue of the Electricity Corporation of Nigeria Act, cap. 58 (Vol. II, 1958 ed. of the Laws of Nigeria), on the 6th day of July 1950, but by the National Electric Power Authority Decree No. 24 of 1972 (hereinafter referred to as "The NEPA Decree"), N.E.P.A. was established and by section 45(2) of the NEPA Decree the said Decree "shall be deemed to have come into operation on 1st April, 1972"; and by sub-section (3) of section 45 of the said Decree the Electricity Corporation of Nigeria Act was repealed. Section 44(1) of the NEPA Decree provides that, the reference in this Decree to "the body to whom this Decree applies" is a reference to (a) the Electricity Corporation of Nigeria established under the Electricity Corporation Act (cap. 58) or (b) the Niger Dams Authority established under the Niger Dams Act 1962 (No. 23 of 1962), and that the references "in any other enactment or law to those bodies or either of them shall be construed as references to the Authority and effect shall be given to the enactment or law with such modification as may be necessary". By sub-section (2) of section 44 aforesaid, the expression "Authority" in the said Decree is said to mean the National Electric Power Authority established by section (1) of the NEPA Decree. Section (1) aforesaid reads:-

"1      (1)     There shall be established an authority to be known as the National Electric Power Authority and it shall be the duty of that Authority as from the vesting date to develop and maintain an efficient, coordinated and economical system of electricity supply for all parts of the Federation or as the Authority may direct, and for this purpose:-

(a)     to generate or acquire supply of electricity;

(b)     to provide bulk supply of electricity for distribution....;

(c)     to provide supply of electricity for consumers in Nigeria and as may from time to time be authorised by the Authority."

Part III of Schedule 1 to the NEPA Decree provides for transitory and provisional arrangements for the secondment of officers and staff of "a body to whom the Decree applies" (i.e. E.C.N. and Niger Dams Authority) to N.E.P.A. on the vesting date, and section (1) of that Part of the said Schedule reads:-

"(1)    Officers and servants of a body to whom this Decree applies who, on the vesting date, are on the established staff of such a body shall be deemed to be seconded for such period as may be specified by the Board (i.e. Board of the Authority established under section 2 of the said Decree) by an instrument addressed to the said officer or servant from the service of the body in question to the service of the Authority subject to such limitation as regards periods of service as may be provided by their existing terms of service in that body." (brackets supplied)

Section 5 of the NEPA Decree reads:-

"5      (1)     Subject to the provisions of this Decree, all property, rights, liabilities and obligations which immediately before the vesting date were property, rights, liabilities and obligations of a body to whom this Decree applies shall on that day vest or be deemed to have vested by virtue of this Decree and without further assurance on the Authority.

5        (8)     Subject to the provisions of this Decree, a body to whom this Decree applies shall be dissolved or deemed to be dissolved on the vesting date." (Italics supplied).

Finally, section 44(2)(c) provides the 1st June, 1972 as the "vesting date."

From the foregoing it is clear that on the 1st day of June, 1972 the 2nd defendants became, by operation of law, dissolved. As of that date there was no right of action vested in the respondent which could be exercised against the E.C.N. The respondent had not even been given a query nor had his appointment been terminated. The NEPA Decree came into force on 1st April, 1972, and although by section (4) and Part III of Schedule 1 of the said Decree officers and servants on the established staff of the E.C.N. on the vesting date (such as the respondent) were to be deemed to be seconded for such period as may be specified by the Board of the Authority (i.e. NEPA) by an instrument addressed to such officers, the position was that, as of that date (the vesting date), the respondent was debarred by the E.C.N. from functioning in any official capacity and had been asked "not to report for duties until further notice". Admittedly, until removed from the service of the Corporation the respondent remained technically on the staff of E.C.N. Undoubtedly, difficulties will arise in applying Part III of Schedule 1 in respect of the respondent and generally on the question of his "secondment" to N.E.P.A. However, the vital questions in this appeal are, (1) who terminated his appointment? and (2) on which of the two Corporations' staff (E.C.N. or N.E.P.A.) was he on the date of the termination of his appointment? Paragraph (1) of his statement of claim on which obviously his claim is founded postulates a curious, even if ineffective so far as the appellants (N.E.P.A.) are concerned, contract; there was no iota of evidence led in support of the allegations pleaded therein and, in any event, such an agreement-if, indeed, there ever was one-certainly cannot be binding on the 1st defendants (the appellants). However, the answers to the two questions above, as supplied by the respondent in his pleading, are: (1) that at all material times to this action he was a member of staff (NOT of N.E.P.A.) but of E.C.N. (see paragraph 20 of his statement of claim) who, on 12th June, 1972, served him with a notice of interdiction from the service of E.C.N. (paragraph 10 of the statement of claim refers) and (2) that on 2nd August, 1972, his appointment was terminated by a letter (Exhibit H) by which he was no longer allowed to remain "in 2nd defendant's service" (i.e. E.C.N.). (See paragraph 5 of his statement of claim). Exhibit H, on the findings of the trial court, was written "on behalf of the demised E.C.N." According to the learned trial Judge, N.E.P.A. did not authorise this letter (Exhibit H) and "was not connected with it in any way".

The learned trial Judge further observed:-

"The interdiction of the plaintiff was also unauthorised and purported to be an act of the E.C.N. which was legally incapable of authorising it because E.C.N. did not exist any more at the time. The plaintiff's action was founded upon the termination of his employment and N.E.P.A. did not terminate his employment. This action is to this extent misconceived."

We pause here to observe that there is no cross-appeal by the respondent against the above findings of the learned trial Judge. We make this observation because the note-paper on which Exhibit H is written bears the names of the two defendant Corporations. It was open to the learned trial Judge to find that the contention of the respondent that his appointment was terminated by the E.C.N. might have been mistaken, and that Exhibit H must be the act of N.E.P.A. since, as of that date, E.C.N. no longer was in existence. But there are other facts which the trial court had to take into consideration and which tell in favour of its findings; these are:-

(i) The pleading (i.e. statement of claim) was in the main, directed against E.C.N. (and NOT N.E.P.A.). By paragraph (1) it was E.C.N. that contracted with the respondent "to employ him as Chief Accountant in N.E.P.A.'s service."

(ii) it was the claim of the respondent that "at all material times to this action" he was on the established staff of "the 2nd defendant" (E.C.N.) and neither was any offer for service "under the 1st defendants" (appellants) nor any instrument therefore, made or written to him. (Paragraph 20 of the statement of claim refers).

(iii) Again by paragraph 8 of the statement of claim, the respondent pleads that "by a series of unlawful acts", the 2nd defendant (i.e. E.C.N.) eventually wrongly debarred the plaintiff form the service of the 2nd defendant by letter of 1st June, 1972.

(iv) it was his complaint that after his appointment had been "wrongly terminated" by a letter of 2nd August, 1972, he was not allowed to continue service under "the 2nd defendants" (E.C.N.)-(paragraph 5 of the statement of claim refers).

(v) And all his (respondent's) petitions were directed, not to N.E.P.A. but, to E.C.N.

This situation persisted, and the statement of claim remained unamended throughout the trial and in spite of the interlocutory application, until after learned Counsel for both parties had, at the conclusion of the trial, addressed the court which thereafter adjourned for judgment. As already stated above, the learned trial Judge on the state of the pleadings and the evidence before him made the findings earlier on set out.

This appeal is by the 1st defendant who maintains that on the state of the pleadings and on the evidence adduced the plaintiff's claim must fail. There is no cross-appeal against the specific findings of the trial court nor is there any notice of contention that this judgment be affirmed on grounds other than those adduced by the trial court.

We must pause again to observe that after learned Counsel on both sides had addressed the court, on 11th September, 1974, the court adjourned "sine die for judgment". But on 15th October, 1974, the respondent applied by motion to amend his statement of claim so as to direct his cause of action against the 1st defendant. In fact, there occurred substantial and material variations and additions in the amended statement of claim which the respondent eventually filed. It has, however, to be observed that when the application came up for hearing on 24th October, 1974 (well over a month from the date on which the trial court having heard the address of counsel had adjourned for judgment) learned Counsel for the appellants opposed the application but the learned trial Judge in allowing the same ordered as follows:-

"The amendment sought will be allowed. The reasons for granting leave will be embodied in my judgment.. the amended statement to be filed today and amended statement of defence to (be) filed today or tomorrow if necessary. Neither party intends to recall any witnesses."

The amended statement of claim was filed but it was, however, filed on the 25th (NOT the 24th, as ordered) of October, 1974. Now, Order 25 rule 3 of the High Court of Lagos State Civil Procedure Rules (hereinafter referred to as "H.C.R. Lagos State") provides as follows:-

"If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order such order to amend shall on the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, become Ipso Facto Void, unless the time is extended by the court or a judge".

These Rules (H.C.R. Lagos State) came into force on the 1st day of September, 1973, and were applicable to the proceedings in the case in hand in September and October 1974. The amended statement of claim having been filed outside the period of the order of the learned trial Judge was, therefore, incompetent and of no effect. The position, therefore, is that the case of the respondent had to be determined on his original (but unamended statement of claim). When so considered, it is clear that on 1st June, 1972,-the "vesting date" under the NEPA Decree-the respondent was already debarred by E.C.N. "from performing the duties of either the Chief Accountant or Chief Internal Auditor" of the E.C.N. and had already been require, in addition, "to hand over all Corporations' property in (his) possession and....... to refrain from reporting for duty until further notice". (Exhibit D refers). Not having been dismissed from its service the respondent had no right of action in existence (or pending) as of that 1st June, 1972, the vesting date-when, also, the E.C.N. dissolved as a corporation (by operation of law-section 5(8) of the NEPA Decree refers). On the vesting date, therefore, there was no right of action by the respondent, against the E.C.N. which N.E.P.A could inherit. However, in the circumstances above-stated, the questions naturally arise as to (1) whether the "transitory and supplemental provisions" relating to officers and servants of the Authority (i.e. N.E.P.A.) set out in Part III of Schedule 1 to this Decree (NEPA Decree) are available to the respondent and (2) whether, in consequence of and pursuant to the other provisions of the said Decree (e.g. 5(1), 5(2)(c) and 5(3)(f), the respondent was in August, 1972, a member of or entitled to be on the staff of N.E.P.A. and in what capacity? These questions, it seems to us, can be raised and answered in a different action (if appropriate). In the case in hand, however, the respondent's complaint as appears from his pleading and evidence was that it was the E.C.N. (NOT the N.E.P.A.) who terminated his appointment. It may well be that on an amended claim and statement of claim facts may be pleaded which are capable of showing that he has right of action against the appellants. However, on the claim and statement of claim, as formulated, in the case in hand, his right of action, if any, is against the E.C.N. which at the commencement of these proceedings no longer existed.

The foregoing conclusion was very clear, even at the very early stage of these proceedings when the appellants and 2nd defendant brought their interlocutory application for dismissal of this suit, and we are satisfied that the learned trial Judge erred in law in failing to dismiss the claim at that stage, on that application. The appeal against the interlocutory action, therefore, succeeds.

We will now deal with the principal question in this appeal and it is whether the order for non-suit made by the lower court should stand? In the penultimate part of his judgment, the learned trial Judge observed:-

"Anyway the plaintiff's case as formulated against NEPA must fail and it remains for counsel for both parties to address me on the question whether the justice of the case will not be met by a non-suit instead of an order dismissing the plaintiff's case."

Having heard learned Counsel for both parties, the learned trial Judge observed:-

"Both parties to this action have been acting without sufficient regard for the provisions of NEPA Decree. It will manifestly be unjust to dismiss plaintiff's action. A non-suit is the proper order and the plaintiff is accordingly non-suited."

We are, however, satisfied that the learned trial Judge had not the power to enter a non-suit. Under the former Supreme Court Rules (Order XLV rule 1 of the Supreme Court Civil Procedure Rules, cap. 211 Vol. 10 of the 1948 edition of the Laws of Nigeria) which until August, 1973, were in force in the High Court of Lagos State, a judge of the High Court of Lagos State could make an order for a non-suit. This provision no longer appears in the High Court of Lagos State (Civil Procedure) Rules (H.C.R. Lagos State) which came into force on 1st September, 1973, and were operative in the High Court of Lagos State when the order in question was made by the trial court. The provisions of Order XLV, rule 1 have, it seems, been deleted from the H.C.R. Lagos State and in its place provisions for "DISCONTINUANCE" of a suit are made in Order 23, rules 1, 2 and 4 which are very similar in all material respect to the provisions of Order 26 rules 1, 2 and 4 of the 1963 Rules of the Supreme Court, England. Like his counterpart in the High Court of Justice in England, a judge of the High Court of Lagos, under the new Lagos High Court Rules can no longer enter a "non-suit" in any civil proceedings before him. We are, therefore, satisfied that the order for non-suit made by the trial court in Suit LD/1112/72 on 31st October, 1974, was incompetent and ought to be set aside. We think, however, that even if the provision for an order of non-suit had not been withdrawn from the current High Court Rules the circumstances of the case in hand do not warrant or justify any such order in favour of the respondent. Although it was always in the discretion of the trial Judge to enter a non-suit, he has a duty to exercise the same judicially. Here was a case in which right from the commencement of the suit the respondent had the benefit of the service of counsel. It was his counsel who, having taken instructions from him, framed the claim and later settled the pleadings (statement of claim); and at a very early stage of the proceedings an interlocutory application was made for the dismissal of the suit on various grounds, earlier on set out in this judgment. Contrary to the observation of the learned trial Judge in the penultimate paragraph of his judgment, counsel on both sides at the hearing of the interlocutory applications canvassed all the material sections of the NEPA Decree relevant to these proceedings and it ought to have been clear, even at that early stage, to counsel and party (in this case the respondent) that there may be wisdom in either carrying out appropriate amendment to the pleadings or withdrawing the claim as formulated (in accordance with the provisions for "Discontinuance" in H.C.R. Lagos State) and bringing another more appropriate accurate claim. Neither counsel nor party took advantage of the opportunity offered by the said interlocutory application. It should have been obvious to learned Counsel for the respondent (and the respondent) even at an early stage of this case (after all the irregularities in the statement of claim were duly pointed out in the body of the interlocutory application) that it was necessary to obtain an order to amend pleadings. No; that was not done until a very late stage of the proceedings when application for amendment was made. Even then, when leave to amend was granted, the order was not duly complied with. In this connection, we think, it is desirable to draw attention to the observations of Wilmer, L.J. (which we entirely endorse):-

"It remains, therefore, to consider the defendants' third submission, namely, that, assuming the rule to apply, the learned trial Judge failed to exercise his discretion judicially having regard to all the circumstances of the case. It is on this point that in our judgment the learned judge's order is open to attack. It is not unimportant to observe that the plaintiff here was not without legal advice. He had the advantage of counsel and solicitors not only in presenting the case in court, but also in preparing the particulars of claim. This is not a case of an unassisted litigant who, through ignorance, may perhaps plead his case the wrong way or fail to produce all the necessary evidence in support. We apprehend that it was largely with a view to assisting such persons that the power to enter a non-suit was preserved in the county court after its abolition in the High Court ............. And even more serious criticism in our view is that the learned judge non-suit the plaintiff and thereby giving him the opportunity of bringing fresh proceedings against the defendants-after he already specifically had drawn attention to the state of the plaintiff's pleaded case, and had invited counsel for the plaintiff to consider whether an amendment was desired. The plaintiff had, therefore, already had his chance of putting forward his claim against the defendants in the alternative way, and-not in ignorance, nor hastily, but deliberately through his counsel-had elected not to take advantage of the opportunity afforded him. To give him a second chance, thereby enabling him to harass the defendants by instituting fresh proceedings, would in our judgment be a grave injustice to the defendants in the circumstances of this case ............. In either case, it seems to us, the overriding consideration is that in the public interest there should be an end to litigation."

(Italics supplied)-see Clack v. Arthurs Engineering Ltd. [1959] 2 A.E.R. 503 per Wilmer L.J. at 510-511.

As we have already pointed out, the learned trial Judge had no power to enter a non-suit; the order was therefore incompetent. Even if he had such a power it does not appear to us that, in the circumstances of this case, an order of non-suit was proper. In any event, the claim should have been dismissed on the interlocutory application and the appeal from that decision (the interlocutory ruling) has succeeded. Accordingly, this appeal is allowed and the order for non-suit in SUIT LD/1112/72 made by the learned trial Judge on 30/10/74 is hereby set aside and in substitution therefore it is ordered that the respondent's claim be and is hereby dismissed and that this shall be the judgment of the lower court. The order for costs made on 19th February, 1973, on the occasion of the Ruling on the interlocutory application is hereby set aside. If the costs of N20 awarded on that occasion has already been paid by the appellants to the respondent it shall be refunded. The appellants shall have the costs of this appeal assessed at N202 and in the lower court at N50.